I refused to give a breath or blood sample, so how can the prosecution prove I consumed alcohol?
In every state, you can be convicted of a DUI based on blood alcohol concentration (BAC) (.08% or more in most states) or actual impairment. A DUI based on BAC is often called a "per se" DUI. To be convicted of a per se DUI, BAC test results are necessary. However, BAC test results aren't to be convicted based on actual impairment.
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If you have refused to give both the breath and the blood sample, there are certainly a few ways the prosecution can prove that you have consumed alcohol. You shouldn’t assume that just because they haven’t performed a chemical test, searched your vehicle, or questioned you thoroughly that this means you’re off the hook. There are many ways they can obtain evidence to use against you and secure a conviction.
To prove a person is impaired without a breathalyzer reading the state must prove a person is APPRECIABLY IMPAIRED. This is probably the most common way the government tries to prove a person is impaired without a breathalyzer reading. The definition of being appreciably impaired is NOTICEABLE impairment. There is no x + y = z formula on how to prove noticeable impairment.
Rather it is determined by on a case-by-case basis. Common things which are looked at in court in determining if someone is noticeably impaired is how did the person perform on the field sobriety test, was the person steady on their feet, was a person able to answer questions, could they speak without slurring their words, could a person stand up out of the car without any issues, follow the cops instructions, did they drive their vehicle normally, etc…
But simply being charged with a chemical test refusal does not necessarily mean that it – or the DUI itself – will be sustained in court. Common DUI defenses that you may be able to use to fight the penalties for refusing to take a DUI breath or blood test include: your arrest was unlawful; the officer didn’t clearly advise you of the consequences of a chemical test refusal; and your refusal resulted from an injury (that was not caused or contributed to by alcohol or drugs).
In cases with no BAC test results, the prosecutor will introduce evidence of poor field sobriety test performance. The standardized field sobriety tests—the walk-and-turn, one-legged-stand, and the horizontal-gaze-nystagmus tests—are purportedly reliable tools for determining whether a person is under the influence.
Evidence of field sobriety test performance normally comes in the form of the arresting officer's testimony. The officer's testimony will generally focus on what about the driver's test performance indicated impairment. Sometimes a driver's actions obviously show impairment. But officers are also trained to look for more subtle clues of intoxication that require more explanation for the jurors to understand.
While the prosecutor will likely attempt to convince the jury that the tests are legitimate methods of measuring the defendant's intoxication and that the defendant's performance indicated intoxication, the defendant's lawyer will normally try to undermine the validity of the tests and offer explanations other than intoxication for the defendant's allegedly poor performance on the tests.
In addition to introducing evidence of the field sobriety tests, the prosecutor will often have the officer testify about other observations made of the defendant during the traffic stop and arrest. The officer may describe things like smelling the odor of liquor coming from the defendant's breath, slurred speech, and watery bloodshot eyes. The prosecutor might also have the officer testify to evidence recovered from the defendant's car, such as open beer cans or empty liquor bottles. The officer might also recount how the defendant was driving in a reckless manner, such as swerving, drifting off the road, and the like.
It's becoming fairly common for patrol vehicles to be equipped with dashboard cameras. And many police departments are also requiring officers to wear body cameras. So, in addition to the officer's testimony, prosecutors might introduce video evidence of sobriety test performance and other indications of driver impairment.
If you were arrested for DUI in Orange County and refused to give a BAC sample, you should consider hiring a DUI lawyer as soon as possible. Call our Orange County DUI attorney now to discuss the details of your arrest at (949) 622-5522.